Recent Respect at Work amendments to Queensland's Anti-Discrimination Act

On 10 September 2024 the Queensland Government passed the Respect at Work and Other Matters Amendment Act 2024 (Qld) (Amending Act), which amends the Anti-Discrimination Act 1991 (Qld) (AD Act). The purpose of the Amending Act is to implement key reforms of Queensland’s anti-discrimination laws arising from the 2020 Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces Report of the Australian Human Rights Commission.  The Respect@Work Report found that sexual harassment in Australian workplaces remains prevalent and the current system for addressing sexual harassment is complex and confusing for victims and employers to understand. The reforms will include new provisions covering harassment on the basis of sex, expanded attributes protected by the law, and the inclusion of a positive duty for all organisations (including not-for-profits in Queensland) to eliminate discrimination, sexual harassment, harassment on the basis of sex, and other objectionable conduct as far possible. They commence on 1 July 2025.

Background

The Respect@Work Report recommended improvements to the Sex Discrimination Act 1984 (Cth) (SD Act) and that the Australian Government work with state and territory governments to amend state and territory human rights and anti-discrimination legislation with the objective of achieving consistency, where possible, with the SD Act. In response to the recommendations of the Respect@Work Report, the Federal Parliament has amended the SD Act.

Following the Respect@Work Report, the Queensland Attorney General requested the Queensland Human Rights Commission (QHRC) to undertake a review of the AD Act. In 2022, the QHRC released its Building Belonging: Review of Queensland’s Anti-Discrimination Act.

New harassment provisions

A key finding of the Respect@Work Report was that there was a disconnect between the protections currently in place under the SD Act and how the public understands these protections. In particular, there was a perceived gap in coverage for conduct that may not meet the threshold for ‘sexual harassment’ but is otherwise caught by the prohibition on direct discrimination on the basis of sex. The report concluded that the continuing prevalence of this behaviour in workplaces indicates the need to clarify the scope of the law.

The Amending Act amends the AD Act to include new prohibitions of ‘harassment on the basis of sex’. However, unlike similar new provisions in the SD Act, which apply in all areas of public life where discrimination is prohibited, the new Queensland prohibition will only apply to work or work-related areas.

Under the new definition, ‘harassment on the basis of sex’ will happen if a person:

• engages in unwelcome conduct of a demeaning nature in relation to another person;
• engages in that conduct on the basis of the sex of the person harassed; or
• engages in the conduct with the intention of offending, humiliating or intimidating the other person, or in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.

Broadly, the prohibitions apply to harassment by a person conducting a business or undertaking, a worker in a business or undertaking or another person against other workers or persons in connection with a business or undertaking.

Work environment that is hostile on the basis of sex

As recommended by the Respect@Work Report, the Amending Act introduces a new prohibition making it unlawful for a person to subject a second person to a work environment that is hostile on the ground of sex. Conduct of this nature is likely already covered by existing prohibitions on sexual harassment or as indirect discrimination. However, the report concluded that the continuing prevalence of the conduct points to a disconnect between the existing protections and the public’s understanding of these protections. The existing protections have not been widely judicially considered. The amendments aim to clarify the scope of the law.

The new provision prohibits conduct (including making statements) that a reasonable person, having regard to all circumstances, would have anticipated would create a work environment that would be offensive, humiliating or intimidating to another person because of the second person’s sex, or a characteristic that a person of the second person’s sex generally has, or a characteristic that is often imputed to a person of the second person’s sex. This conduct does not need to be the main or only conduct of the person that makes the hostile work environment. This reduces the burden of proof on the complainant.

A person subjected to such conduct may make a complaint to the QHRC.

New positive duty

Reflecting a recommendation of the Respect@Work Report, the QHRC’s Building Belonging Report recommended introducing a positive duty to take reasonable and proportionate measures to eliminate discrimination, sexual harassment, and other prohibited conduct as far as possible. The Respect@Work Report identified the key benefit of a positive duty as shifting the burden from individuals making complaints to employers taking proactive and preventative actions.

The Amending Act introduces a new positive duty that requires duty holders to take reasonable and proportionate measures to eliminate discrimination, sexual harassment, harassment on the basis of sex and other objectionable conduct as far as possible. The duty only applies to persons conducting a business or undertaking within the meaning of the Work Health and Safety Act 2011 (Qld). The duty is in addition to, and overlaps with, the new positive duty under the SD Act but is broader in scope as it extends the duty to a wider range of contexts and conduct in Queensland.  The duty is also in addition to workplace health and safety regulations already in force.

In practical terms, the positive duty means that rather than merely waiting for complaints to be made, duty holders will be required to take proactive steps to prevent objectionable conduct. Helpfully, the Explanatory Memorandum for the Respect at Work and Other Matters Amendment Bill 2024 (Qld) included the following examples of the type of conduct that will be expected to comply with the positive duty:

• ensuring there are organisational policies in place that address the importance of respectful behaviour;
• ensuring easily accessible information is available;
• conducting workplace surveys to measure knowledge and awareness of unlawful conduct like discrimination, and the extent to which such conduct has been experienced by staff;
• engaging in informal or formal disciplinary discussions with staff who are engaging in disrespectful or unlawful conduct; and
• managers and leaders clearly and regularly articulating expectations of respectful behaviour.

The QHRC will have power to investigate suspected breaches of compliance with the positive duty and suspected systemic breaches related to contraventions on the basis of sex and is also empowered to take enforcement action in the form of compliance notices and enforceable undertakings. The QHRC may issue public reports on systemic contraventions.

Expansion of protected attributes

The Building Belonging Report recommended updates to some existing attributes protected under the AD Act and the addition of new attributes. The Amending Act has added 6 new protected attributes:

• expunged conviction: means the person has an expunged conviction under the Criminal Law (Historical Homosexual Convictions Expungement) Act 2017.‍
• homelessness: not defined
• irrelevant criminal record: means, briefly,
  • a charge against a person that has lapsed, been withdrawn, discharged or struck out, or
  • where the person has been acquitted or had a conviction quashed or set aside, or
  • where a person has a conviction for an offence but the circumstances of the offence are not directly relevant to the situation in which the record is being considered.
• irrelevant medical record: means a person’s medical record that is not directly relevant to the situation in which the record is being considered. ‘Medical records’ includes applications and claims made for workers’ compensation.  
• physical appearance: means a person’s weight, size or height, the presence of a birth mark or scar, or any other body characteristics that are not freely chosen.
• subjection to domestic or family violence: means the person is or has been subject to domestic violence within the meaning  given by the Domestic and Family Violence Protection Act 2008 (Qld).

The Amending Act has updated 6 existing attributes as follows:

• family, carer or kinship responsibilities - The existing attribute of ‘family responsibilities’ is replaced with undefined attribute of ‘family, carer or kinship responsibilities’.
• parental status - The definition of ‘parent’ is updated to include references to persons who, under Aboriginal tradition or Torres Strait Island custom, are regarded as a parent or relative.
• pregnancy and potential pregnancy - The attribute is updated to add ‘potential pregnancy’ which is defined as including  the person’s capability to become pregnant, the person’s expressed desire to  become pregnant, and the person’s likelihood, or perceived likelihood, to become pregnant.
• race - The definition of ‘race’ is updated to add immigration or migration status, and caste.
• sexual orientation - The existing attribute of ‘sexuality’ and its definition are replaced with ‘sexual orientation’.
• trade union activity - The  existing attribute is updated to add activities in relation to registered  industrial organisations.

While the amendments do not commence until 1 July 2025, Queensland organisations that conduct a business or undertaking should begin taking steps to ensure their organisation will be in a position to comply from commencement.

If you would like assistance to work out how these changes will impact your organisation, please do not hesitate to contact the team at NFP Lawyers.

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